Abdo v Neumann, 2021 ABQB 836

Court of Queen’s Bench of Alberta Citation: Abdo v Neumann, 2021 ABQB 836 Date: 20211021 Docket: 2103 11175 Registry: Edmonton Between: Abdulsolam Abdo Plaintiff/Respondent - and - Michael Neumann Defendant/Applicant _______________________________________________________ Endorsement of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Michael Neumann applies for an order setting aside an “Unconditional Order” of the Residential Tenancy Dispute Resolution Service made on August 5, 2021. [ 2 ] In that Order, the Tenancy Dispute Officer found that Mr.

Neumann was in substantial breach of the Residential Tenancies Act SA 2004, c R-17.1 and the tenancy agreement for failure to pay rent when it was due. The Order terminated the tenancy effective August 5, 2021 and required Mr. Neumann to deliver up vacant possession of the rental premises no later than Friday August 31, 2021. It also granted Mr. Abdo, the landlord, judgment for unpaid rent, unpaid utilities and costs totaling $3,866.55. [ 3 ] The materials indicate that Mr.

Neumann was served on the evening of July 28, 2021 with notice of the Residential Tenancy Dispute Resolution Services Hearing scheduled for August 5, 2021. Given that the August long weekend intervened, and that the day of service and the day of the hearing are not counted in the service period, this was 4 clear days service. [ 4 ] At the hearing on August 5, 2021, Mr. Neumann applied for more time to respond to the Landlord’s application. The materials filed by the Landlord on this application include one page of the transcript of the hearing.

That page, 7 of 14, records the Tenancy Dispute Officer questioning the Landlord’s representative about an aspect of the Landlord’s claim which apparently concerned him, and then, saying: Mr. Neumann, according to the residential tenancies act, a litigate ( sic) needs to serve the other litigant with only three clear business

days. It the eyes of the law legislators are of the opinion that 72 hours is enough time for a respondent to understand the case made against them, produce defence evidence, and then arrange to show up. [ 5 ] The Officer then noted that Mr. Neuman had been served a week earlier, and did not organize himself to answer the Landlord’s claims. He then proceeded to make his decision on the merits of the Landlord’s claim. [ 6 ] The Officer also advised Mr.

Neumann that within 30 days he could produce evidence to refute the Landlord’s evidence upon which the Officer relied and that the Officer might amend his order on the basis of that evidence.

The materials properly before me do not disclose what if anything happened in that regard. [ 7 ] The Residential Tenancy Dispute Resolution Service Regulation, Alta Reg 98/2006 , s 23(1) provides: Any party who is subject to an order of a tenancy dispute officer may appeal the order on a question of law or jurisdiction to the Court of Queen’s Bench. [ 8 ] In my view, this appeal is on a point of law – whether the law provides that 3 days service is sufficient. [ 9 ] Neither the Residential Tenancies Act nor the Regulations just cited provides that the required service time for a hearing before a Tenancy Dispute Officer is 72 hours (3 days) as the Officer stated. [ 10 ]

Section 41 of the Act provides that 3 days notice is required to be given of an application to the “Court” which is defined as the Court of Queen’s Bench and the Provincial Court. Although in

Part 5.1 the Act creates the Residential Tenancy Dispute Resolution Service and permits applications to be made to it, that part of the Act is silent as to service time. [ 11 ] Section 31(1) of the Regulations provides that the manner of service of documents required to be served under the Regulation is as set out in the Act, s. 57. That

section says nothing about time for service. [ 12 ]

Section 5 of the Regulations says that the Dispute Resolution Service shall establish “rules of practice and procedure”. The Rules so established provide in

section 3.2: Application packages must be served in the manner provided for in the Residential Tenancies Act . . . and be served at least three clear days before the application is to be heard. . . . [ 13 ] I expect the Officer was relying on that provision in holding that the Landlord here had given sufficient notice. [ 14 ] However, in my view, the rules established by the Dispute Resolution Service do not have the force of law.

Unlike, for example, the Alberta Rules of Court, they have not been adopted and promulgated as a Regulation. [ 15 ] If the Officer here was of the understanding that he had no legal authority to grant Mr. Neumann’s request for more time to prepare for the hearing, he was wrong in law. Even if there were a provision that applied to a RTDRS hearing setting the required service time at 3 days, it would always be in the Officer’s discretion to grant more time if the request for it was reasonable. Indeed, it maybe that the Officer here thought that Mr.

Neumann had had enough time to prepare his response, but in reciting his reason for not affording him more time, he made an error of law. Contrary to what he said, no law provides that 3 days notice is sufficient. [ 16 ] Both parties filed affidavits as to the merits of their dispute on this application. But the Regulations provide in s. 25(1)(

a) that on an appeal like this: no evidence other than the evidence that was submitted to the Dispute Resolution Service may be admitted, but the Court of Queen’s Bench may draw any inferences (

i) that are not inconsistent with the facts expressly found by the Dispute Resolution Service, and (ii) that are necessary for determining the question of law or of jurisdiction . . . [ 17 ] Accordingly, the affidavits which have been filed on this application are not admissible. The one page of the transcript of the RTDRS hearing which has been included in the filed materials is properly before me.

My understandings of what occurred as set out earlier in this endorsement are from that one page. [ 18 ] If the whole transcript had been put before me it is possible that I might conclude that the Officer’s error was a technical irregularity and that no substantial wrong or miscarriage of justice has occurred (see Regulations, s. 25(4)).

But in the circumstances that possibility is not available. [ 19 ] In the circumstances, given that there was an error of law and I am not able to determine, from what is legally before me, whether or not the error of law resulted in any real injustice, I have no option but to cancel the Order granted by the Dispute Resolution Services Officer and refer the matter back to the Dispute Resolution Services as contemplated by the Regulations, s 25(2). Heard on the 24 th day of September, 2021. Dated at the City of Edmonton, Alberta this 20 th day of October, 2021.

B.R. Burrows J.C.Q.B.A. Appearances: Both parties appeared without Counsel.